Citation Nr: 9828032
Decision Date: 09/18/98 Archive Date: 09/25/98
DOCKET NO. 97-31 533 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for heart disease.
3. Entitlement to service connection for pulmonary
tuberculosis (PTB).
ATTORNEY FOR THE BOARD
Tsopei Robinson, Associate Counsel
INTRODUCTION
The veteran had recognized guerilla service from September
1944 to October 1945 and regular Philippine Army Service in
November 1945.
This matter comes before the Board of Veterans’ Appeals
(Board) from an April 1997 rating determination of a
Department of Veterans Affairs (VA) Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection for
hypertension, heart disease, and PTB is warranted because he
experienced these disorders within the initial post-service
year.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the veteran has not met the initial burden of submitting
evidence which is sufficient to justify a belief by a fair
and impartial individual that the claim for service
connection for hypertension, heart disease, and PTB are well
grounded.
FINDINGS OF FACT
1. There is no competent evidence that the veteran currently
has hypertension.
2. There is no competent evidence that the veteran currently
has heart disease.
3. There is no competent evidence of a nexus between current
PTB and active service.
CONCLUSION OF LAW
The claims of service connection for hypertension, heart
disease, and PTB are not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service medical records are negative for complaints,
findings, or treatment for hypertension, heart disease or
PTB. Physical examination done in October 1945 noted normal
findings for the cardiovascular system, lungs, and a blood
pressure of 122/80.
The veteran’s Affidavit for Philippine Army Personnel
completed by the veteran in October 1945 show no reported
wounds or illnesses during service.
In June 1996, the veteran filed an application for service
connection for the conditions at issue in this appeal. In
conjunction with this application the veteran submitted a
medical certificate dated in May 1996 and signed by Dr.
Vincente N. Santa Maria, M.D., which stated that the veteran
had been his patient, off and on, from 1948 until 1979 for
PTB, emphysema, hypertension, and heart disease.
Additionally, Dr. Santa Maria stated that the veteran
received the necessary prescription and proper medication for
these disorders, but his ailments remained unstable.
In a memorandum for the file, signed by the Adjudication
Officer at the RO, it was reported that records from the
Philippine Professional Regulation Commission showed that Dr.
Vincente N. Santa Maria had last renewed his medical license
in 1975. It was also reported that the RO had previously
made numerous requests for Dr. Santa Maria’s clinical and or
treatment files contemporaneous to the periods of alleged
treatment; however, the RO had been advised by the doctor
that all such records were destroyed by fire in 1983.
National Tuberculosis Control Programme Clinical Treatment
Cards dated in September 1994 and November 1996 show
treatment for PTB.
A clinical summary received in March 1997 from Paulino D.
Legaspi, Jr., M.D., shows that the veteran was treated in
September 1994 for severe hemoptysis and body weakness.
A Veteran’s Memorial Medical Center (VMMC) reference slip
shows no records of treatment on file from 1955 to 1956 for
the claimed disabilities, although the veteran had reported
such treatment on his claim for VA benefits in June 1996.
Analysis
The threshold question that must be resolved with regard to
each claim is whether the appellant has presented evidence
that the claim is well grounded; that is, that the claim is
plausible. If he has not, his appeal fails as to that claim,
and VA is under no duty to assist him in any further
development of that claim. 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78 (1990).
Case law provides that, although a claim need not be
conclusive to be well grounded, it must be accompanied by
evidence. A claimant must submit supporting evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261,
262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
In order for a claim to be well grounded, there must be
competent evidence of current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet. App.
498 (1995).
In order to be entitled to service connection for a disease
or disability, the evidence must reflect that a disease or
injury was either incurred in or aggravated by military
service. 38 U.S.C.A. § 1110 (West 1991). In general, a
chronic disease will be presumed to have been incurred in
service even though there is no evidence of such disease
during the period of service. Cardiovascular disease
including hypertension are presumptively service connected if
the diseases manifest themselves to a compensable degree
within one year of separation from service. Tuberculosis is
presumptively service connected if the disease manifests
itself to a compensable degree within three years of
separation from service. 38 C.F.R. §§ 3.307, 3.309(a)
(1997).
Under the provisions of 38 C.F.R. § 3.303(b), chronic disease
shown as such in service (or within the presumptive period
under § 3.307) so as to permit a finding of service
connection, subsequent manifestations of the same chronic
disease at any later date, however remote, are service
connected, unless clearly attributable to intercurrent
causes. This rule does not mean that any manifestation of
joint pain, any abnormality of heart action or heart sounds,
any urinary findings of casts, or any cough, in service will
permit service connection of arthritis, disease of the heart,
nephritis, or pulmonary disease, first shown as a clear-cut
clinical entity, at some later date. For the showing of
chronic disease in service there is required a
combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "Chronic." When
the disease identity is
established (leprosy, tuberculosis, multiple sclerosis,
etc.), there is no requirement of evidentiary showing of
continuity. Continuity of symptomatology is required only
where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim.
The chronicity provision of § 3.303(b) is applicable where
evidence, regardless of its date, shows that a veteran had a
chronic condition in service or during an applicable
presumption period and still has such condition. Such
evidence must be medical unless it relates to a condition as
to which, under the Court's case law, lay observation is
competent. If the chronicity provision is not applicable, a
claim may still be well grounded or reopened on the basis of
§ 3.303(b) if the condition is observed during service or any
applicable presumption period, continuity of symptomatology
is demonstrated thereafter, and competent evidence relates
the present condition to that symptomatology. Savage v.
Gober, 10 Vet. App. 488, 498 (1997).
Service connection may be granted for any or disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993). The United States Court of
Veterans Appeals (Court) has held that a lay party is not
competent to provide probative evidence as to matters
requiring expertise derived from specialized medical
knowledge, skill, expertise, training, or education.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).
In the instant case, the veteran has not satisfied her
initial burden of submitting evidence that the claims of
service connection for the hypertension, heart disease, or
PTB are well grounded. As stated above, the service records
are negative for findings or treatment for the above
mentioned disorders and there is no objective evidence
showing heart disease including hypertension within the
initial post-service year or PTB within three years following
service.
For purposes of determining whether a claim is well grounded,
the evidence is presumed to be true. Exceptions exist where
the evidentiary assertion is inherently incredible, or when
the fact asserted is beyond the competence of the person
making the assertion. King v. Brown, 5 Vet. App. 19, 21
(1993).
Dr. Santa Maria reported that he had treated the veteran
beginning in 1947 for the conditions at issue in this appeal.
This statement if accepted as true would place the onset of
the veteran’s tuberculosis (but not his heart disease or
hypertension) within the presumptive period after service.
The Board, however, finds that the statement from Dr. Santa
Maria falls into the category of the inherently incredible.
The doctor’s 1996 statement purported to recall specific
diagnoses and treatment for a particular patient beginning
nearly fifty years earlier. Dr. Santa Maria acknowledged
that he had not seen that patient in approximately 17 years,
but asserted that he could remember the details of that
treatment. Such recollections would have to have been made
solely from memory. Further Dr. Santa Maria reported that he
had treated the veteran for a number of years after his
medical license had apparently expired. Accordingly, his
1996 statement about the treatment the veteran received
during the 1940’s is inherently incredible.
In Cruzada v. Gober, U.S. Vet. App. No. 96-1132 (Sep. 16,
1997), a non- precedential memorandum decision, a judge for
the United States Court of Veterans Appeals (Court) held that
the Board’s determination that Dr. Santa. Maria’s
certification is not credible has a plausible basis in the
record. In Alcaide v. Gober, U.S. Vet. App. No. 96-1259
(Sep. 16, 1997), a non-precedential memorandum decision,
another judge of the Court affirmed a Board decision in which
the Board’s determined that Dr. Santa Maria’s statements were
minimally probative because they were based upon the doctor’s
memory of events occurring more than 45 years ago, and there
was no clinical evidence to support the doctor’s opinion.
While these single judge decisions carry no precedential
weight, they may be relied upon for any persuasiveness or
reasoning they contain. Bethea v. Derwinski, 2 Vet. App.
252, 254 (1992).
The clinical treatment cards (National Tuberculosis Control
Programme) dated in September 1994 and November 1996 show
treatment for PTB. For purposes of a well-grounded claim,
they show a current disability. However, there is no medical
evidence linking the current findings to service. The
presumption of incurrence during active service is not
applicable since this diagnosis was not within three years
following separation from service. In fact, the diagnosis is
more than forty-nine years following separation from service.
What is lacking under the Caluza test is medical evidence of
a nexus between the veteran’s current PTB and active service.
The veteran’s opinion that the claimed disability is related
to active service does not meet this standard. As the Court
held in Espiritu, 2 Vet. App. 492, 494-95, questions of
medical diagnosis or causation require the expertise of a
medical professional. The veteran has neither presented nor
indicated that evidence exist which tends to establish a
causal relationship between his PTB and active service.
With regard to the veteran’s claims of service connection for
hypertension and heart disease, the veteran has not submitted
any competent evidence showing that he currently has the
claimed disabilities. Even Dr. Santa Maria’s statement does
not show that those conditions were present in service or
during a presumptive period, or that they are present
currently. In the absence of evidence of a current
disability or of medical evidence linking a current
disability to service, the claims must be denied as not well
grounded.
Consequently, the Board finds that the claims for
hypertension, heart disease, and PTB are not well not
grounded. 38 U.S.C.A. § 1110, 5107(a). In view of the
foregoing, the Board finds that no further duty to assist as
mandated by 38 U.S.C.A. § 5103(a), with respect to the
veteran’s claims. Beausoliel v. Brown, 8 Vet. App. 69
(1995).
ORDER
Service connection for hypertension is denied.
Service connection for heart disease is denied.
Service connection for PTB is denied.
Mark D. Hindin
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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